R v Oldeman
[2013] NZHC 1709
•5 July 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2012-069-251 [2013] NZHC 1709
THE QUEEN
v
BARRY JOHN OLDEMAN
Charges: Permitting premises to be used for the manufacture of methamphetamine; Supplying Class A controlled drug Plea: Counsel:
Guilty
PP Crayton for Crown
PG Mabey QC for PrisonerSentenced:
5 July 2013
SENTENCING NOTES OF BREWER J
Solicitors: Almao Douch (Hamilton) for Crown
Paul Mabey QC (Tauranga) for Prisoner
R v OLDEMAN [2013] NZHC 1709 [5 July 2013]
Introduction
[1] Mr Oldeman, you have pleaded guilty to a charge of supplying methamphetamine. This charge carries a maximum penalty of life imprisonment. You have also pleaded guilty to a charge of permitting premises to be used for the manufacture of methamphetamine. This charge carries a maximum penalty of
10 years’ imprisonment.
Facts
[2] In 2011 and 2012 you were living at a rural address near Taupo. In 2011 you permitted Mr David Harries to move into other premises on the property and to establish a methamphetamine manufacturing laboratory. Mr Harries then manufactured and sold substantial quantities of methamphetamine. He is currently serving a sentence of imprisonment in excess of 14 years.
[3] When the Police executed a search warrant at your property they caught Mr Harries red-handed. I will not go into the detail of the scale of Mr Harries’ operation because I accept there is no evidence that you were aware of it. What I do infer is that you knew what he was doing and you received methamphetamine from him as a payment for allowing him to continue his operation. I also infer that you knew he was making more methamphetamine than was supplied to you. You knew that he was manufacturing methamphetamine on a commercial scale and you obtained methamphetamine for your own use and you profited from being able to sell methamphetamine. I also infer that had the Police not closed Mr Harries down, the arrangements between the two of you would have continued. I base this on the stockpiles of precursor material found in the laboratory.
[4] When the Police searched your residence they found seven grams of methamphetamine, ziplock bags and $7,900 in cash. The text messages on your cellphone indicated that you had supplied between 55 and 58 grams of methamphetamine from August 2011 to February 2012, mainly in packets of 0.25 to four grams, although on one occasion you supplied an ounce. There were a further
11 occasions where you supplied methamphetamine but in respect of which the quantities are unknown.
Personal circumstances
[5] You are 57 years old. You have been with your current partner for eight years. You admit that your offending has strained your family and, in particular, your relationship with your two adult daughters. You have worked in the farming industry for most of your life and have been self-employed on leased property running dry stock for 20 years. Prior to your offending, you describe yourself as being happy and financially secure.
[6] You say you are addicted to cannabis and methamphetamine and that your addiction was one of the main factors contributing to your offending.
[7] You have been identified as having a high risk of reoffending and the potential to pose high harm to the community. Your lawyer, Mr Mabey QC, takes exception to comments made by the writer of the pre-sentence report about your lack of remorse and your tendency to minimise your actions. In my view, the facts of your offending rather overwhelm your personal circumstances.
[8] This is your first drug related conviction. However, you have three driving related convictions and a conviction for male assaults female.
Starting Point
[9] I take the lead offence as being the supply of methamphetamine. You are treading a well-trodden path when it comes to this offence.
[10] The leading case is called R v Fatu.1 I agree with the submissions of counsel that your offending falls within band two as it is described in that case. Both counsel have referred me to other cases which address circumstances of some similarity to yours. I have considered them.2
[11] I set a starting point of five years’ imprisonment for this offence.
1 R v Fatu [2006] 2 NZLR 72 (CA).
2 R v Brewis HC Auckland CRI-2009-090-006454, 15 December 2009; R v Haira HC Rotorua
CRI-2009-063-5871, 24 November 2011; R v Williams HC Auckland CRI-2007-044-003059,
29 July 2008; R v Tuuta HC Rotorua CRI-2006-063-4690, 24 September 2008; R v Irshad HC Auckland CRI-2007-004-013539, 2 December 2008.
[12] I now have to consider what uplift should be given for the charge of permitting premises to be used for manufacturing. Again, counsel have referred me to a number of other cases.3 The Crown submits that I should adopt a start point of four to four-and-a-half years’ imprisonment. Mr Mabey submits that a start point of up to three years can be justified on the authorities. I agree with Mr Mabey. I will adopt a start point of three years’ imprisonment.
[13] The charges are related and I cannot simply add the starting points together. I have to step back and look at the totality of your offending. I allow an uplift of one years’ imprisonment, taking the combined start point to six years’ imprisonment.
Mitigation
[14] I now turn to factors which might reduce the start point.
[15] There is nothing in your personal circumstances which would cause me to reduce the start point. You are well and truly a grown man who has chosen his own path and you do not show any great effort to rehabilitate yourself.
[16] You are, however, entitled to a substantial discount for your pleas of guilty. Normally, I would not be particularly impressed with pleas of guilty entered so late in the piece. However, I take account of Mr Mabey’s submissions in relation to your challenge to the charge of manufacturing methamphetamine, a charge which is about to be withdrawn. Nevertheless, because of the delays in respect of the charges to which you have pleaded guilty, you are not entitled to a 25% discount, but I will allow 20%.
Sentence
[17] Mr Oldeman, you are sentenced to four years and 10 months’ imprisonment on the charge of supplying methamphetamine. On the charge of permitting premises to be used for the manufacture of methamphetamine, I impose a concurrent sentence
of two years four months’ imprisonment.
3 R v Martin [2012] NZHC 2381; R v Lorigan HC Auckland CRI-2010-055-1742, 29 November
2011; R v Smith and Crosbie HC Auckland CRI-2010-057-1017, 22 February 2011; R v Grant
HC Christchurch CRI-2008-009-001219, 4 December 2008.
[18] The Crown has not asked for a minimum period of imprisonment, and I do not think I am justified in imposing one. The Crown has asked for an order for forfeiture of the $7,900 in cash found at your home, and I make an order accordingly.
[19] On the Crown’s indication that it will not offer any evidence against you in respect of the manufacturing charge, I now discharge you on that count.
[20] You may stand down.
Brewer J
3